A Scot on SCOTUS…

Antonin Scalia, the most senior Associate Justice on the Supreme Court of the United States (SCOTUS), died this week aged 79. This means two important things:

There is now a seat on the most important Judicial Bench in the world; and

The Judiciary is now a live issue in the US Presidential Election.

The second of these is political – and will depend (theoretically) on the candidates legislative and legal outlooks. But the first raises issues of Constitutional Procedure and legal operation. It also comes the closest America gets to a constitutional convention which may or may not exist, depending on how convenient it’s existence is to the Majority in the Senate.

The Supreme Court and the President

The 3 branches of the US Federal Government (The Legislature; The Executive; and the Judiciary) are established in Article 1, 2 & 3 of the US Constitution respectively. However, despite the US’s love of ‘Separation of Powers’, the President and Congress play a pivotal role in the selection of new Supreme Court Justices.

In the UK, while the Queen appoints new Judges at the Prime (or First) Minister’s recommendation, this is more stuffy Constitutional rules than genuine political process. The reality is that independent judicial appointment committees do the vetting and recommendation. This ensures – as much as it can be – that judges are independent and impartial.
In the US however, the process is explicitly political, with the President and Congress both having key, and invariably politicised, roles to play.

When a spot on the bench opens up, the first step is that the President nominates a person to the Supreme Court. This is his right under Article II, Section 2, Clause 2 the US Constitution which states (in potted terms):

[The President]…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint …Judges of the Supreme Court…

This is usually a high-ranking judge on one of the Courts of Appeal, or other experienced judicial official or legal academic.

While this clause in the Constitution is the only legal rule regarding the President’s power to nominate SCOTUS judges, there is a more flexible political rule in play, the ‘Thurmond Rule’. This stems from the Civil rights says when Senator Thurmond (a Southern segregationist) mounted a campaign to block President Lyndon B. Johnson’s (who signed the Civil Rights Act) US Supreme Court nomination as pay-back. He defined this rule as meaning that no life-time judicial appointments should take place in the latter part of an election year.
This is this that has caused some excitement regarding the appointment of Scalia’s successor. 2016 being an election year, the Republican Majority have attempted to invoke this ‘rule’ (which has no legal standing) to argue Obama should not nominate a successor as the election process is underway. However, while the election will happen on the 10th November 2016 – the winner won’t become the 45th President until January 2017, and with confirmation processes lasting around 2-3 months, this means there could be vacancy on the US’s most important court for over a year! The significance of this is discussed below, but it could well be a political reality, though not a legal requirement.

The Supreme Court and The Senate

Should Obama nominate a candidate, they then face the Senate Judiciary Committee. After (what is almost always) a lengthy testimony, usually spanning days, the committee then vote on whether to recommend the nominee to the Senate or not. A rejection here is not a de jure end to the nomination, but de facto is not a good sign for success, so may lead to a withdrawal and starting the process again.

What really matters is the vote before the Senate. Out of respect for the prestige of the position, a roll call vote is always called. Each Senator states whether they support or oppose the nominee. Theoretically, this only requires 51 votes (a simple majority) and the job is done.
However, especially in these partisan times, the danger is the filibuster. It is possible that, if the opposition is strong enough, the opponents could try and talk out the clock on the nomination process and avoid a vote altogether. Since 2013, most filibusters can be ended by 51 Senators voting to bring it to an end (a “cloture vote”). However, appointments to the Supreme Court are one of the few exceptions, and requires a three-fifths super-majority (60 Senators) to vote in favour.
On the practical level, there are currently 54 Republican Senators and only 46 Democratic-bloc (44 Dems and 2 Dem-voting Independents), meaning that it is virtually impossible for a filibuster to be blocked if it was deployed. This would have political ramifications, as all Congressional actions do, but would be legally doable.

The Supreme Court in the meantime

In the end, if a nomination isn’t made until the next President is sworn in; or the nominee withdraws after the Senate Judiciary Committee; or the Senate rejects him; or his nomination is filibustered out and doesn’t even reach a vote, then there will remain only 8 Justices hearing cases on the Supreme Court – and it’s a key time in US Jurisprudence.

Upcoming cases include cases on voting rights, Union rights and (the most divisive of American topics) abortion. While Scalia was on the court, these cases would be decided and would, most likely, be decided in the conservatives’ favour.
A funny aspect of SCOTUS is, because of the political nature of appointments, is the court is extremely partisan . In most cases, you can predict with 90% certainty that 4 justices will form a liberal bloc (Ginsberg, Breyer, Sotamyor and Kagan) and 4 a conservative one (Scalia, Thomas, Alito and Chief Justice Roberts) with Anthony Kennedy being the swing-vote.
Now Scalia’s seat is vacant, this becomes a 4-3 default, with a swing or 4-4. {1}

If there’s still a majority on the court then, all is well. There is nothing that stops SCOTUS hearing and deciding upon cases with only 8 justices. It is a 4-4 decision which may prove more troubling. There are three consequences to a tie on the bench:

The decision of the court from which the case was heard is upheld.

No precedent is set from the Court.

The same matter may not be re-appealed to the Supreme Court.

In Common Law countries (such as the US), this could lead to legislative-confusion. A No precedent set in key cases, which arise form a particular set of circumstances and haven’t had Supreme Court consideration for years (such as abortion) and it could be some time before they reach the court again. Even if the court agree the matter can be “re-argued”, it can still take months and years before a judgement is rendered. A no-score could delay the development of much-needed jurisprudence in contentious and vital areas of law.

The ratio

As Toby Zeigler discovered in Season 1 of the West Wing, getting a judge onto the Supreme Court isn’t an easy task. It has multiple steps, numerous obstacles and many pitfalls, which can be terminal to a Presidential legacy…especially one nearing it’s end.

It’s clear that the process of replacing Justice Scalia requires the legal processes, which are clearly defined in the Constitution and show Obama can (and it appears will) nominate a successor, to brush up against the political realities (A Republican Senate, a hung Court, and ongoing Primary election and potentially one of the most polarizing Presidential elections the US has faced in recent times). What will happen is hard to be sure of, but Obama can play it smart, and get either a liberal on the bench, or Republicans to block appointments out of spite.

Either way Scalia, a constitutional textualist who stuck by the words (not the spirit or customs) of the Constitution, would probably agree – Obama can (and arguably must) nominate the (potential) 113th Associate Justice of the Supreme Court of the United States.

An addendum:There is (of course) another way Obama could appoint a Jsutice to SCOTUS. He could – if he wanted to have fun – wait until the Congress was out of session and just appoint his next Justice. They can only serve until the end of the next session, but it could help solve part of the problem. This is impractical, however, as he would have to wait until around December (after the 2016 Elections – which are looking good for the Democrats so far) and his appointee would have a very limited effect on the actual decisions of the court.For completeness though, I felt I should add this in.

{1} It’s also worth noting that in any cases Scalia heard and voted on, but whose judgements have not yet been handed down, his vote is annulled – potentially creating retrospective ties.